'Miserable, laborious, and short': The lives of animals

• Author: Pretorius, D.M.
• DOI: https://doi.org/10.47348/SALJ/v139/i4a4
• Published date: 12 December 2022
• Date: 12 December 2022
• Citation: (2022) 139 SALJ 791
• Pages: 791-836

791

https://doi.org/10.47348/SALJ/v139/i4a4

‘MISERABLE, LABORIOUS, AND SHORT’:

THE LIV ES OF ANIMALS

D M PRETORIUS†

Partner, Bowmans

Animal welfare legi slation in South Afr ica is de cient, espec ially in relation to far m

animals reared for i ngestion by human b eings. That bein g so, this article an alyses

aspects of pu blic internati onal law, administrative l aw, constitutional la w and

interpretat ion of statutes tha t may contribute t owards aording more l egal protection

to such animals. An o verview of re cent case law hi ghlights that the Con stitutional

Court has ma ndated a shift away fro m the traditional lai ssez-faire legal attitude t o

human use of anima ls towards one that requires enha nced protection of their intere sts.

To that end, extensive legisl ative reform is ne cessary to rec tify the dec iencies of th e

present system.

Anim al welfare legis lation – anima ls as bearers of ri ghts – legislat ive reform

‘God knew noth ing of thi s back then on the si xth morn ing, when He

still believed that everyth ing was just perfect. But eventual ly it must have

dawned on Hi m — like most beh avioura l scientist s He was probably a bit

slow on the uptake — that what He had ac tual ly created wa s a factor y for

the manuf acture of suerin g.’

(Peter Høeg T he Woman and The Ape (19 96) 80 .)

I IN TRODUC TION

In modern ti mes the meat production industr y has expanded to sta ggering

proportions. G lobally, in 2018 an estimated 69 bil lion chickens, 1.5 billion

pigs, 656 million tu rkeys, 574 mill ion sheep, 479 million goats and 302

million cattle were slaughtered for hum an consumption.1 In South Afr ica,

the same fate befalls some 3.5 million cattle, 3 m ill ion pigs, 7 mi llion

sheep and goats, and 950 mil lion chickens an nually.2

By its very nature, the meat industry involves cruelty to a nima ls.

Animals are reared and ki lled in a manner, and in quantities, that cannot

but leave one with a sense of disquiet. Yet, it is generally taken for granted

that human beings are entitled to treat animals in th is manner. Such

entitlement is gener ally ex pressed in leg al term s (anima ls are regarded as

† BA LLB (Stellenbosch) BA ( Hons) LLM (SA) PhD ( Witwatersrand).

1 https://ourworldindata.org/meat-production#number-of-animals-slaughtered; ht tp s://

faunalytics.or g/global-animal-slaughte r-statistics- and-cha rts-2020-upd ate/; and ht t p s ://

www.weforum.org/agenda/2019/02/chart-of-the-day-this-is-how-many-animals-we-

eat-each-year/, both accessed on 20 November 2021; Henry Mance How to Love

Animals in a Human -Shaped World (2021) 52.

2 Department of Agr iculture, Land Refor m and Rura l Development Abstract

of Agricultural Statistics (2020) 56– 62; https://www.world-grain.com/articles/12371-

meat-consumption-r ising-in-south-afric a, accessed on 20 August 2021.

(2022) 139 SALJ 791

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792 (2022) 139 TH E SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v139/i4a4

the property of human beings, who may dea l with their property as they

please), in moral-cum-relig ious terms, or in hierarchical terms (humans

are viewed as biologically superior to animals).

Against this background, th is article explores aspects of public law

relevant to the protect ion of domesticated anima ls bred and slaughtered for

human consumption.3 The article com mences with a brief conside ration

of the sentience of animals a nd the morality of breeding anim als for the

purpose of killi ng and eati ng them. Then follows an exploration of the

current legal status of animals, and of the protection accorded to livestock

under South Af rican law and public international law, with particular

reference to the Terrestr ial An imal Hea lth Code. I shal l high light dec iencies

in the system of leg al regu lation of the hum an treatment of livestock.

I shall proceed to demonstrate that principles of public inter national law,

admin istrat ive law and statutory inter pretation can assist in addressing

some of these fai lings. Final ly, the focus will shif t to the environ mental

rights pr ovisions i n the Constitution of the Republic of South A frica, 1996.

On the face of it, these provisions do not sig nicantly enhance protection

for anima ls. Nevertheless, an over view of post-1996 case law will show th at

there has been a g radual positive shift in judicial attitudes towards an imals

generally. That notwithstanding, substantial stat utory reform remains

necessar y to remediate the status quo pertaining to livestock. To that end,

I shall conclude t he article by advancing a fe w high-level proposals a imed at

giving livestock more legal protection against human cruelt y.

II THE SENTIENCE OF ANIMALS

Consideration of the moral and legal issues raised by huma n beings’ treat-

ment of animals should proceed from the recognition that many species of

animals are sentient beings, a nd that sentience is a character istic common

to most living beings (i ncluding Homo sapiens). Historical ly, it was not

always understood that an imal s are sentient beings. ‘Animals are like

robots: they can not reason or feel pain’, René Descartes (1596–1650)

supposedly sa id. By contrast, the veterina rian Wi lliam Youatt wrote as

long ago as 1839 that an imals demonstrate sagacit y, memory and reason;

‘they also have imagination and the mora l qualit ies of courage, f riendsh ip

and loyalty’.4 Nowadays scientists generally accept that animals such as

3 For the sake of brevit y, I shall use the compendious term ‘live stock’ to refer

to these an imal s. I do so mind ful of the ex planat ion by Philip J Sampson Animal

Ethics and the Nonconformist Conscience (2018) 14 of the manner in which the

imperson al term ‘livesto ck’ (with its connotat ion of business asset s) has faci litated

the commodication of the se animals ‘from livi ng creatures into pa ckages in the

fr eez er’.

4 Ian J H Duncan ‘The ch angin g concept of ani mal sent ience’ (2006) 100

Applied Animal Be haviour Sci ence 11 at 12.

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‘MISER ABLE, LABOR IOUS, AND SHORT’: THE LI VES OF ANIMA LS 793

https://doi.org/10.47348/SALJ/v139/i4a4

dogs, pigs, cattle, horses, goats, wild mammals and birds are all sentient

to a greater or lesser extent. Studies of amphibians, repti les, sh and

crustaceans indicate that they, too, have a degree of sentience.5 ‘Many,

if not all, anima ls have deep, rich, and complex emotional l ives. … It is

not just the elephants, whales, dolph ins and apes … that make news about

their cognitive, social and emotional lives. The list a lso includes a ll types

of birds, mammal s, insects, and sh species.’6 Some animals demonstrate

empathy for each other, for other species, and even for huma ns.7

Anim als’ sentience mea ns that they feel plea sure and pai n, and have desi res

simil ar to those of hum ans for food and water, shelter, companionsh ip,

freedom of movement, and avoidance of pain. They have the capacity

to experience positive feeling s such as happiness as well as negative states

such as physical and psychological pa in and suer ing in ways similar to

that exper ienced by humans.8 Science increa singly recognises animals’

cognitive abi lity to comprehend the pain they feel. An imals consciously,

and with an xiety, appreciate the gravit y of their situation when they are

being neglected or abused or when they await their slaughter.9 These

character istics of animals, including livestock, must be considered when

we assess the propr iety and adequacy of the ma nner in which the law

regulates the meat industry.

III THE MORA LITY OF BRE EDING ANIMALS TO KILL AND

EAT T HE M

Jeremy Bentham (1748–1832) said that, when wondering who should be

given moral consideration, the question is not ‘Can they rea son?’ nor ‘Can

they talk?’ but ‘Can they suer?’10 Some polities have beg un to pay heed

to Bentham’s preferred question. Scientic recognition of the sentience

5 Yuval Noa h Harari Homo Deus: A B rief Histor y of Tomorrow (2016 ) 97–10 2

and 142–6; Jane Kotzmann ‘Re cognisi ng the sentience of anim als in law :

A justica tion and fr amework for Australia n States a nd Territories’ (202 0) 42

Sydney L R 281 at 286; Jan Hoole ‘Here’s what the science say s about ani mal

sentience’ The Conversation 24 November 2017; Jon Ungoed-Thomas ‘Fa rmed

sh feel pain, stress a nd anxie ty and must be kille d humanely, globa l regulator

accepts’ The Guardi an 8 October 2022.

6 Micha el Ray Harris ‘A rig ht of ethical consid eration for non-huma n animals’

(2021) 27 Hastings Env LJ 71 at 98.

7 Simon Worra ll ‘Yes, animal s think and feel’ Na tional Geographic 15 July 2015;

Yuval Noah Hara ri 21 Lessons for t he 21st Century (2018) 187–8 and 200.

8 Kotzmann op cit not e 5 at 282 and 285 –6. Also see Jane Kotzmann & Nick

Pendergrast ‘Animal r ights: Ti me to star t unpackin g what rig hts and for whom’

(2019) 46 Mitchell Hamline L R 157 at 197.

9 Clare Pr ober ‘The pragmat ic justications for ex tending addit ional statutor y

protection to a nimals’ (2020) 53 Su olk Univ LR 1 at 6 –7.

10 See Sampson op cit note 3 at 32–3; Harr is op cit note 6 at 84–5; Thoma s G

Kelch ‘A short histor y of (mostly) western ani mal law: Pa rt II’ (2013) 19 Animal

LR 347 at 354.

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